The focus of this workshop, which brings together leading experts and researchers from Australia and overseas, is on comparative assessment of important aspects of governance and regulation of charities. This workshop forms part of a larger project, funded by the Australian Research Council, which undertakes a comprehensive and comparative investigation of governance and enforcement in the charitable sector in a number of jurisdictions, with particular focus on Australia. The charitable sector is an essential part of the social fabric and economy in a number of jurisdictions. The detailed comparative evaluation facilitated during this workshop will enable identification of problematic issues, as well as development of policies, recommendations and reforms. As part of the presentations, Rosemary Langford will present her draft findings and recommendations and welcomes feedback.
The workshop will consist of papers on a number of important topics concerning governance and regulation of charities from a comparative perspective. Day 1 of the workshop (on 2 May 2022) will be in hybrid format, with participants having the option of either attending in-person at Melbourne Law School or attending online (or a mixture of both). Day 2 of the workshop (on 3 May) will be fully online, with sessions run by presenters from a number of jurisdictions.
There is no cost for attendance at this workshop but registration prior to 25 April 2022 is required.
Please direct any inquiries to Rosemary Langford.
Murray Baird is an Adviser on the law, governance and regulation of not-for-profit organisations. Murray was the inaugural Assistant Commissioner General Counsel at the Australian Charities and Not-for-profits Commission (ACNC) from its inception in 2012 until 2019. In this role he was responsible for Compliance and Governance function of the ACNC for 60,000 Not-for profit organisations in Australia. He was involved in the development of the ACNC Governance
Principles, the ACNC Governance Guide: “Governance for Good” and on the steering committee for the AICD publication: “The Not-For-Profit Governance Principles” 2nd Ed. 2019. Prior to that he was Senior Partner and Leader of the Not for Profit Law Group at Moores Legal in Melbourne specialising in the
law and governance of Not for profit organisations. He now consults with Prolegis — a leading national charity law firm. In 2019 he was appointed by the Attorney General of Victoria as a Victorian appointee to the Legal Services Council which oversees the implementation of the national Legal
Profession Uniform Law Scheme — a regulatory framework for Australian legal practitioners. |
Murray also serves as:
* Adjunct Professor at the University of Western Australia
* Senior Fellow of the University of Melbourne Law School where he teaches on the law and governance of Not-for-profits
* Member of the Advisory Council of the International Center for Not-for Profit Law
* Director of the Charity Law Association of Australia and New Zealand
|Sue Barker||Sue Barker is the director of Sue Barker Charities Law, a boutique law firm based in Wellington, New Zealand, specialising in charities law and public tax law. Sue is currently on sabbatical as the New Zealand Law Foundation International Research Fellow Te Karahipi Rangahau ā Taiao, New Zealand’s premier legal research award, undertaking research into the question “What does a world-leading framework of charities law look like?”, with a report due in April 2022. Sue is also a co-author of The Law and Practice of Charities in New Zealand (LexisNexis, 2013), which is due to go into its second edition next year. More information about Sue and the research can be found at www.charitieslaw.co and www.charitieslawreform.nz.|
|Jenny Beard||Jenny Beard is an Associate Professor at Melbourne Law School where she teaches domestic and international public law related subjects in both the JD and MLM programs. Jenny’s scholarship is best characterised as critically oriented historical research into legal concepts and narratives of the good. Jenny’s interest in forms of authority that are attractive to law and law-making underpins her research on the public aspects of charity law over time, the political advocacy of charities and the role of the not-for-profit sector in law and development.|
|Jackie Bettington||Jackie Bettington is a researcher and lecturer at the Queensland University of Technology. Her research interests are corporate governance, business ethics and boards of directors. In 2015 Jackie completed a Research Masters in which she developed a director financial literacy competency framework for directors serving boards in Australia, including the governing bodies of nonprofit organisations. Continuing her research into a PhD Jackie investigated the relationship between director financial literacy, board dynamics and the financial monitoring performance of individual directors and boards. Developing a direct test of director financial literacy, training course and tools to assist directors were key practical real-world products of her research. Over the past 20 years Jackie has served as a director and chair on several nonprofit boards including boards of professional associations, heritage organisations and providers of residential care and support to children and young people. She also has extensive professional experience in information governance law, policy and practice in the public, nonprofit and commercial sectors. Further details at: https://www.linkedin.com/in/jackiebettington/ and https://www.qut.edu.au/about/our-people/academic-profiles/j.bettington.|
|Oonagh B Breen||
BCL (UCD), LLM (UCD), LLM (YALE), JSD (YALE), BL; Professor of Law, Law Sutherland School of Law, University College Dublin, Ireland|
An expert in regulation and governance, with a specialization in the legal regulation of charities, Oonagh Breen holds law degrees from both University College Dublin and Yale Law School. A professor at the Sutherland School of Law, UCD she specializes in NGO Law & Governance, and the law of Equity and Trusts. She is currently President of the International Society for Third Sector Research (ISTR) and a member of the ICNL’s International Advisory Council. She has worked with the Irish Government on charity law reform, charity regulators in several jurisdictions and in 2021 Oonagh was appointed as Chair of the Independent Review of Charity Regulation in Northern Ireland. The Review Panel’s report was published in January 2022.
A regular international speaker on comparative charity regulation matters, Oonagh has published extensively and is a co-editor (with Alison Dunn and Mark Sidel) of Regulatory Waves: Comparative Perspectives on State Regulation and Self-Regulation Policies in the Nonprofit Sector (Cambridge University Press, 2017), co-author of Law of Charities in Ireland with Philip A. Smith (Bloomsbury Professional, 2019) and co-editor with Noel McGrath of Palles: The Legal Legacy of the Last Lord Chief Baron (Four Courts Press, 2022, forthcoming).
A former Fulbright Scholar (2003) and Government of Ireland Research Fellow (2003), she has also held research fellowships at the Hauser Center for Nonprofit Organizations at Harvard University (2009) and was a Potter Foundation Fellow at the Australian Centre for Philanthropy and Nonprofit Studies (ACPNS) at QUT, Brisbane in 2016. Oonagh has also held visiting appointments at De Paul Law School, Chicago, University Missouri Kansas City, University of California, Davis, Brooklyn Law School, and Southern Illinois University and the University of Victoria, New Zealand
|Erin Matariki Carr||Erin Matariki Carr: (Ngāi Tūhoe, Ngāti Awa). Matariki was raised in Whakatāne and currently lives in her home rohe of Tāneatua, just north of Te Urewera rainforest. She completed her studies at Victoria University of Wellington with a Bachelor of Laws (Honours) and Bachelor of Arts, majoring in Spanish. Matariki’s work has been in the Māori law arena, including a focus on post-Settlement iwi governance and structuring at Chapman Tripp and policy writing for Te Urewera legal personhood at Te Uru Taumatua. She is now an independent contractor providing legal research, management and wānanga facilitation services. Matariki is co-lead of RIVER Aotearoa Charitable Trust, a Research Fellow for Associate Professor Claire Charters at the University of Auckland, co-director of Te Kuaka NZA Incorporated Society and a facilitator with Tūmanako Consultants with a focus on helping to bridge worlds in Aotearoa, so we can build a society which actively enables both Te Ao Māori and Te Ao Pākehā to thrive.|
|Anne Carter||Anne Carter is a Senior Lecturer at Deakin Law School. She completed her PhD in 2018 at the University of Melbourne and her book, Proportionality and Facts in Constitutional Adjudication was published by Hart Publishing in 2022. Anne also holds first class honours degrees in both History and Law from the University of Adelaide, as well as the Bachelor of Civil Law (BCL) and Master of Philosophy (MPhil) in Law from the University of Oxford. Prior to becoming an academic Anne worked as a practising lawyer, specialising in constitutional law and administrative law. She also worked as an Associate in the Supreme Court of South Australia and the Federal Court of Australia, and as the Researcher to the Solicitor-General for Victoria. During her PhD studies she was a visiting fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany.|
|Ashton Cook||Ashton Cook is a Tipstaff to Justice Black in the Supreme Court of New South Wales.|
|Kenneth Dibble||Kenneth Dibble is an independent adviser and consultant on charity and NGO law, governance, and their regulation, both within the UK & NI and internationally. Kenneth was appointed the first Legal Director and General Counsel for the Charity Commission of England and Wales (CCEW) in 2003, a position that he held until 2018. He was also Director for the CCEW International Programme during that period, which was a programme designed to support the technical and social development of effective regulation of charities and NGOS worldwide, to prevent terrorist financing and to improve in country regulation to develop civil society. Projects were carried out in Sri Lanka, Indonesia Pakistan, China, and sub-Saharan Africa. Also, joint working with the Canadian Revenue Agency under the UNCTED auspices in developing government and NGO sector awareness of FATF requirements in relation to terrorist financing and typologies. Regional conferences held worldwide. Kenneth was a legally qualified member of the Board of CCEW from 2018 to 2022 and a visiting lecturer at Baynes Business School (formerly Cass) in the City of London, on charity law and regulation. A barrister by profession and an Associate of the Chartered Institute of Bankers. Kenneth completed his legal education at King’s College (LLB, AKC) and University College (LLM), both University of London, and the College of Law.|
|Scott Donald||Dr Scott Donald CFA is an Associate Professor in the Faculty of Law and Justice at UNSW Sydney. His research spans financial regulation, superannuation and the law of trusts.|
|Matthew Harding||Matthew Harding is a professor of law at the University of Melbourne. He is an internationally recognised expert on private law and the law of charities and other not-for-profit organisations. His published work combines theoretical, doctrinal and practical insights. He has published extensively on topics in the theory and doctrines of equity (especially fiduciary law), charity and not-for-profit law and regulation, the law of property, judicial practice and precedent, and the philosophy of trust and trustworthiness.|
|Rosemary Teele Langford||Rosemary is a professor with Melbourne Law School, University of Melbourne. Her primary expertise lies in directors’ duties (with two sole-authored monographs and numerous journal articles on this topic) and she teaches a range of subjects including Corporations Law and Corporate Governance and Directors’ Duties. In the last three years Rosemary has been undertaking a project on governance and regulation of charities funded by the Australian Research Council. She is a member of the Corporations Committee and Not for Profit Law Committee of the Law Council of Australia and of the Laws Committee of the Australian Institute of Company Directors, as well as editor of the directors’ duties section of the Company and Securities Law Journal. Prior to joining academia, Rosemary practised with Arthur Robinson & Hedderwicks (now Allens Linklaters).|
|Kye Joung Lee||Kye Joung Lee is a Professor of law at Seoul National University. He teaches civil law including torts, contract law, property law, and the law of trusts. His academic interest extends to the legal issues with regard to bankruptcy law, civil practice, and A. I. law. Before joining SNU faculty, he pursued his career as a judge for over 12 years (2002-2014). He holds a B.A. degree in Sociology from Seoul National University, a master’s degree in law from Seoul National University, and a Ph.D. degree in law from Seoul National University. Also, he earned an LL.M. at U. C. Berkeley, School of Law. He is a V. S. at U. C. Berkeley, School of law and LMU Munich. He is an editor of the Journal of Korean law. His publication includes the Economic Analysis of the Law of Trusts, the Fundamental Principles of the Trust and Tracing in Equity and Relevant Legal Principles of the Trust.|
|Rebecca Lee||Rebecca Lee is an Associate Professor at the Faculty of Law of The University of Hong Kong. She researches in Equity & Trusts and Non-profit Law, and related aspects in Chinese law, including comparative trusts, third sector and adult guardianship laws. She has published works in these areas in leading English, Australian and American law journals. Currently, she is working on research projects on selected issues in trusts law, charity governance, and special needs support.|
Danielle is a Senior Associate working in London in the Charity & Social Enterprise Department at Bates Wells. She has over 10 years’ experience in private practice, starting out in commercial disputes, and then working for over 6 years at a leading national charity law firm in Australia, before
moving to London three years ago to join Bates Wells. Bates Wells is recognised as a leading charity law practice, ranked band 1 in Charities (UK-wide) by Chambers and tier 1 for Charites and Not-for-Profit by The Legal 500. It is a purpose-driven law firm and the first UK law firm to be a certified
B Corp. |
At Bates Wells, Danielle works on a full range of regulatory and advisory work for UK and international clients, ranging from establishing UK-based charities and social enterprises, advising on international collaborations, restructures, governance and regulatory disputes, to working on a broad range of corporate and commercial matters. Danielle has a Master of Laws and a Bachelor of Arts and Laws with first class honours from the University of Sydney. Her experience as a senior charity lawyer in both Australia and the UK has enabled Danielle to develop first-hand knowledge of the similarities and differences in the practice and regulation of charity law as well as sector trends and pressure points.
|Steven Moe||Steven Moe is a Partner at Parry Field Lawyers in Christchurch with a focus on corporate law, charities, governance and purpose driven legal structures and purpose driven aspect. He has worked as a lawyer for 20 years in Wellington, London, Tokyo, Sydney and Christchurch. He recently released a book of essays “Laying Foundations for Reimagining Business” and hosts seeds podcast, with almost 300 inspiring conversations. He is the Chair of Community Finance which recently won the “Transforming NZ” award at the Sustainable Business Network awards for its work in raising almost $100 million for social housing. Steven is on the New Zealand Charities Services Sector Group.|
|Debra Morris||Debra Morris is Professor of Charity Law & Policy at the University of Liverpool, UK. She is Director of the Charity Law & Policy Unit at the University of Liverpool, where she leads of team of researchers. Her research has focused on diverse aspects of charity law and regulation, ranging from the ‘public benefit’ test through to the impact of equality law on charities. She has contributed to two of the leading texts on English charity law, Picarda: Law and Practice Relating to Charities 4th ed (2010, Bloomsbury Professional) and Tudor on Charities 9th ed (2003, Sweet and Maxwell). She has written widely in the area of charity law and policy and has presented at conferences and seminars around the world.|
Dr Turnour is chairman of the firm, Neumann & Turnour lawyers and an Honorary Senior Fellow of Melbourne Law School. He is a Fellow of the Australian Institute of Company Directors and a Fellow of the Institute of Leaders and Managers. In the government sector he serves as a Sessional Crime and
Corruption Commissioner for Queensland. The Australian Parliament appointed him as one of four panellists to review the legislation establishing the Australian Charities and Not-for-Profits Commission. |
He is listed in Chambers Asia-Pacific Best Lawyers and is an International Advisory Board Member of Cambridge Governance Labs, Hughes Hall, Cambridge
|Masayuki Tamaruya||Masayuki Tamaruya is Professor of Law at the University of Tokyo, where he teaches comparative law and trust law. His main research areas include trusts and estates, nonprofit organizations, civil procedure and legal history. His publication includes, Fiduciary Law and Japanese Nonprofits: A Historical and Comparative Synthesis, in Arthur Laby & Jacob Russell (eds), Fiduciary Obligations in Business (Cambridge UP 2021) pp. 261-82; Fiduciary Principles in Japanese Law, in Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff (eds), The Oxford Handbook of Fiduciary Law (Oxford UP 2019), pp. 643-663 (with J. Mark Ramseyer). He received Bachelor of Laws from the University of Tokyo, LL.M. from New York University, and Diploma in Legal Studies from Cambridge University. Previously, he taught at Rikkyo University, and was a visiting scholar to Harvard Law School, Harvard Yenching Institute, the Faculty of Law and Magdalene College, Cambridge University, and the University of Wisconsin, Madison.|
|Kim D Weinert||Kim is a PhD candidate at Griffith University, Queensland, where her PhD is focused on examining Australia’s representations of speech in Australian film from the 1970s to the 2000s. Kim teaches corporate law at the University of Queensland and has published previously in the areas of not-for-profit law and cultural legal studies.|
Birgit Weitemeyer holds the Chair of Tax Law at Bucerius Law School, Hamburg, and is Director of the Institute for Foundation Law and the Law of Non-Profit Organizations. Born in 1964, she completed her legal studies and First State Examination in 1991 in Kiel. Following this, she participated in the
post graduate program "National and International Environmental Law" at the University of Kiel. In 1994 she completed her doctorate on the topic “Legal Measures for Dealing with Bankruptcy Proceedings, Environmental Law and Insolvency.” In 1996 she passed the Second State Examination.|
Afterwards, she worked as a research assistant at the Chair of Civil Law, Commercial Law, Corporate Law and Tax Law at the University of Kiel until 2002. From 2002 to 2004 she occupied a Chair at Helmut-Schmidt-University – University of the German Armed Forces – in Hamburg. In 2003 she completed her post-doctoral studies with the thesis entitled “The Corporate Taxation of Public Enterprises with a Particular View to Their Hidden Profit Distribution”, receiving the venia legendi for Civil Law, Commercial Law, Corporate Law and Tax Law. From 2004 to 2007 she occupied the Chair for Civil Law, Foreign and International Private Law and Comparative Law at the Technical University of Dresden. In 2015, she declined a call to a W 3 - Professorship for Civil Law, Tax Law, Commercial and Business Law at Christian-Albrechts-Universität zu Kiel. She is a trained assistant in tax and corporate consulting, editor of the npoR – Journal of the Law on Nonprofit Organizations, founder and director of the association Hamburger Forum Unternehmensteuerrecht and member of the Zivilrechtslehrervereinigung, the Deutsche Steuerjuristische Vereinigung, the Gesellschaftsrechtliche Vereinigung.
Day 1 - 2 May 2022 (Hybrid) - AEST
9am - 10.45am
In this session Rosemary will present the results of, and draft recommendations arising from, her detailed comparative and empirical research into governance and enforcement in the charitable sector in Australia. This research was undertaken as part of a three-year project, funded by the Australian Research Council, entitiled ‘Restoring Public Trust in Charities - Reforming Governance and Enforcement’. This has included aspects such as comprehensive investigation of the reasons for complexity and incoherence in the duties of those who govern charities (known as ‘responsible persons’); comparative analysis involving jurisdictions such as Germany, England and Wales, Scotland, Northern Ireland; extensive empirical research in Australia and in England and Wales in relation to how charities deal with conflicts in a practical sense and how those who govern charities understand their obligations; critical evaluation of the enforcement powers, enforcement approach and enforcement activity of the Australian Charities and Not-for-Profits Commission (ACNC); and development of options for legislative and policy reforms to improve the effectiveness of regulation and enforcement by the ACNC. Rosemary welcomes feedback on these results and draft recommendations.
10.45am - 11.15am
11.15am - 12pm
This paper sets the scene for discussions in other presentations. It contextualises an international reform agenda centred on charity commissions. The international reform environment is canvassed first. The legislative environments in the following countries are briefly reviewed: Canada, England Wales, Hong Kong (and China), Ireland, New Zealand, Northern Ireland, Scotland, Singapore, South Africa and the United States of America. As most of these countries enacted charity commission legislation at a similar time, country specific factors driving the reforms are identified before a more detailed analysis of the developments in Australia are taken as a case study. As the legislation usually had identical or similar objects, looking at these commissions through the lens of their legislated purposes provide a third perspective. As the approach taken by a charity commissioner to achieving the objects, not just the wording of the objects, is critical consideration of the administrative approach taken from a theoretical perspective provides a fourth perspective. Overlapping themes emerge from these different perspectives so some questions that invite further research and discussion close the paper.
12pm - 12.45pm
Jennifer Beard, Anne Carter and Rosemary Langford
Traditionally, in Australia the state Attorneys-General, representing the Crown as parens patriae, have been responsible for the regulation and enforcement of charitable trusts. Under both the general law and statute law, the Attorneys-General have had various powers to protect charitable purposes, including the power to seek relief in the case of a breach of trust. Statutes giving powers to the Attorneys-General have broadened the range of persons who may commence proceedings with respect to any breach of a charitable trust. The introduction of the Australian Charities and Not-For-Profits Commission Act 2012 (Cth) and the Charities Act 2013 (Cth), changed the regulatory environment even further. In particular, the legislation establishes a national regulator, the Commissioner of the Australian Charities and Not-for-profits Commission (the ACNC). In this paper we investigate potential gaps, overlaps and inconsistencies in the oversight of charitable trusts by these distinct but overlapping modes of oversight, with particular focus on NSW (due to recent cases in that jurisdiction). In analysing the challenges faced in NSW, we also draw upon and consider the regulatory environments in other states and territories of Australia where relevant and suggest areas of reform.
12.45pm - 1.30pm
1.30pm - 2.00pm
In this presentation, I explore some basic conceptual questions that bear on charity governance. First, I look at the interpretive question of how to ascertain the purposes of a charity, in light of its articulated objects and its activities. Secondly, I consider the various forms that a charity might make, and implications for charity governance. Thirdly, I explore the role of offices and institutions in charity governance, including the courts and regulatory bodies. Finally, I consider the conceptual character of the enforcement of governance duties in charitable settings. I hope to demonstrate that a sound account of charity governance depends in important ways on a clear understanding of these basic questions.
2.00pm - 2.45pm
Corporate not-for-profit structures within Australia are formalised and governed by both federal and state legislation. The most desirable structure for a not-for-profit organisation that operates across state and territory boundaries is a company limited by guarantee (NPCLG) registered under the Corporate Act 2001 (Cth). Statutory governance of this federal not-for-profit body corporate has long been based on the for-profit corporate model, which has overlooked the unique nature of a not-for-profit corporation. Following sector-wide reform efforts to assimilate the governance of an NPCLG with other forms of not-for-profit body corporates, the Australian Charity and Not-for-Profit Commission (ACNC) now has regulatory oversight for those NPCLG registered with the ACNC. Under this arrangement, an NPCLG is subject to a dual regulatory and legislative arrangement. The awkwardness with this arrangement resides in the general scope of the corporate law treating and responding to NPCLG as a corporate business (without share capital), while the governance of the NPCLG’s altruistic purpose is subject to not-for-profit law.
Canada and the United Kingdom are two jurisdictions that have simplified this arrangement by removing not-for-profit body corporates from their respective corporation Acts. The introduction of standalone legislation for not-for-profit body corporates reflects an understanding that a NPCLG should not be a mere extension of company law. The United Kingdom has gone one step further by expanding the corporate body concept with the introduction of a charitable incorporated association (CIO). The starting point of my workshop presentation will briefly outline Australia’s NPCLG legislative framework. From here I will discuss and compare Canada (federal) and the United Kingdom’s not-for-profit body corporate structures and its legislation to advance the idea that Australia should implement similar legislation and an CIO structure.
2.45pm - 3.30pm
Board expertise diversity has been widely embraced by nonprofit organisations as a critical foundation for quality board decisions. In conjunction with legal mandates requiring each individual board member to be able to ‘read and understand financial statements’ (i.e., director financial literacy), it is assumed that expertise diverse boards are well placed for striking an appropriate balance between mission and margin. A recent QUT research study tested this assumption by investigating how board expertise diversity influences individual and board financial monitoring. The study involved testing the financial capability of 96 nonprofit board members and conducting follow-up exploratory interviews with 14 test-takers. Although each test-taker reported being conscientious in performing their board role, less than 15% demonstrated they understood financial statements to the extent necessary for meeting the minimum legal threshold for director financial literacy. Follow-up exploratory interviews revealed the presence of several individual and group factors encouraging board members to focus on the collective outcome (making efficient board level decisions) to the detriment of applying individual level due care and diligence to board matters outside the area of expertise for which individuals were recruited to the board. Apart from board financial experts, these factors also inhibited the development and use of individual board member financial capability. Overall, these research findings challenge the prevailing view that expertise board diversity is associated with effective board performance and the efficacy of legal mandates requiring each board member to be at least director financial literate.
3.30pm - 4pm
4pm - 4.45pm
Charities frameworks are increasingly restrictive in the face of increasing authoritarianism around the world. Drawing on developments in a number of jurisdictions, this session asks whether purpose-based governance might assist in developing a more enabling framework, and if so, how?
4.45pm - 5.30pm
Scott Donald and Ashton Cook
The Australian Charities and Not-for-profits Commission (‘ACNC’) reports that charities in Australia are responsible for over $350bn in assets. The vast majority (<65% by number) of these are classified by the ACNC on the basis of their annual revenue as extra small, small or medium sized. For these charities, income from investments forms a higher proportion of their revenue when compared to large, very large and extra large charities. Most would qualify as wholesale investors for the purposes of the Corporations Act 2001 (Cth), but few maintain investment portfolios of a size to warrant dedicated regulatory supervision of the type applied to other types of institutional investors. In the case of charitable trusts, for instance, although the principles of Equity and the State Trustee Acts will apply, the mechanism of supervision by the State and Territory Attorneys General is not well-suited to oversight of the investment activities of charitable trusts absent some catalyst. The challenge, then, is to ensure that the investment assets held by charities are employed efficiently and properly. This paper considers a small suite of measures that might contribute to promoting that objective, recognising the unique circumstances of the sector.
5.30pm - 6.30pm
Day 2 - 3 May 2022 (Online) - AEST
1.30pm - 2.15pm
Steven Moe and Erin Matariki
Governance of charities and other organisations are often viewed through a Western lens. By contrast, Indigenous ways of being often rely on the understanding that everything in the world is related and inter-connected which flows into law, leadership and governance. What would Indigenous views offer us for consideration if we looked at governance from a “kincentric” perspective? Starting from and discussing that philosophical place, in this session we will be asking questions such as how a kinship with the Earth itself impacts the decision making process, who is sitting at the table and how we relate with each other, other organisations and the land.
2.15pm - 3pm
The Japanese law of nonprofits and fiduciary governance is characterised by its mixed nature. For historical reasons, the basic organizational structure of Japanese nonprofits follows the German model of foundations and associations. Common law influence arrived late, and charitable trusts were introduced by statute in 1922, and a new corporate form known as NPO corporations was introduced in 1998. This did not resolve the persistent criticism of nonprofit abuse, and it ultimately culminated in a major legislative reform of nonprofit legislation in 2006, which introduced broad fiduciary principles and UK-style Charity commission. In recent years, a number of voluntary governance codes have been proposed in some discrete sectors of nonprofits.
Whether this showcasing of governance measures have successfully curtailed abuse can be debated. Nonetheless, there are two more questions that must also be taken seriously. Have not the past reforms been overly restrictive in a way that hampers well-governed nonprofits’ ability to secure sufficient financial basis and strategically deploy the resources for public benefit? Have not these reforms been too limited in scope, on the other hand, so that various entity forms that operate in different sub-sectors continue to operate under idiosyncratic governance rules?
Fifteen years after the 2006 reform, another round of debates on nonprofit governance is taking place. Various blue-ribbon panels have proposed new sets of reforms, and most importantly in the area of education, schools and universities. Just in time, a scandal erupted in Nihon University, and the chairman of Japan’s largest private university was arrested for tax evasion and is suspected of receiving bribe from the contractors. While the need to hold such corrupt nonprofit fiduciaries accountable is unquestionable, the scandal-driven debate on organizational reform involves certain risks. It will be argued that more streamlined but effective governance measures should be considered in a way that harmonises with national and international good practice of increasing diversity, transparency, and meaningful communication with stakeholders.
3pm - 3.45pm
Since the Korean legal system is a civil law system, which differs from the common law system, the scheme of the trust has not been popular. However, the Charitable Trust Act (hereinafter “the Act”) was enacted in 2015 to encourage donation by using the scheme of the trust. Even though the Act on Collection and Use of Donation to handle donation and the Act on the Establishment and Operation of Public Interest Corporations to deal with incorporated charitable entities had been enacted before the enactment of the Charitable Trust Act, why did the Korean government make endeavors to add the Act?
3.45pm - 4.15pm
4.15pm - 5pm
Whereas state regulation of charities, which often take the form of comprehensive statutory regulation and an introduction of state supervisory organ, is seen as the preferred model of governance of charities, the legal and political environment of Hong Kong provides a counter-example. This paper analyses the regulatory regime of charity governance in Hong Kong and argues that although a comprehensive charities statute and regulator will bring about a more consistent regulatory framework, they are unlikely to be the preferable model of governance in light of the current context of Hong Kong’s unique political and legal environment. Instead, a better way forward is to identify more limited regulatory reforms and self-regulatory initiatives in specific areas of need. The Hong Kong experience highlights factors that influence the interplay between state and self-regulatory regimes and may provide a useful reference to policymakers from other jurisdictions in deciding the best model of charity governance.
5pm - 5.45pm
Despite the increased importance and the tax advantages provided by the legislator in favour of the third sector, there are only few regulations that are specially tailored to the requirements that non-profit organisations place on accounting, public register disclosure and corporate governance. Other jurisdictions are ahead of German legislation here. This article addresses the question of whether such a regulatory regime is necessary and, if so, how it should be structured. In addition, reference is made to the latest developments that have already addressed these concerns.
5.45pm - 6.15pm
6.15pm - 7pm
This paper will consider the importance of accountability in charities: what it means, to whom it is most often given and by whom. It will be seen that the answers are not always straightforward and certainly not uniform. As charities continue to play an increasingly important role in society, the need for accountability is greater than ever. Whilst the existence of multiple stakeholders often enhances accountability, it can sometimes lead to conflict. Substantive as opposed to formalistic accountability is not always easy to achieve.
7pm - 8pm
Oonagh Breen, Murray Baird and Kenneth Dibble
During this session the panel will answer questions on regulation of charities, followed by an opportunity to ask questions. Discussion will include aspects such as the nature and burden of charities regulation, the role of the register, the evolving nature of charities regulation and the nature and powers of charity regulators.
8pm - 8.15pm
8.15pm - 9pm
In this session, Danielle will present a comparison of the strengths and weakness in the governance and regulation of charities in Australia and England & Wales. Having worked in both jurisdictions as a senior charity lawyer, Danielle will share her unique perspective and depth of understanding of charity practice in both places and globally. This session will include a whistle-stop tour of the surprising or illuminating similarities and differences in approaches to charity regulation, legal forms, governance and evolving legal concepts. It will explore the policy and practical implications of these differences and insights into what each jurisdiction can learn from the other.